Scotland's constitutional future discussed in Paris

posted by Laura Rayner | March 20, 2013

Alyn has, this weekend, spoken at an international conference organised to discuss the style and shape of a constitution for an independent Scotland.

The conference, held at the prestigious L'Institut d'études politiques (IEP) de Paris (Sciences-Po University), was attended by constitutional experts from across the world. Alyn spoke on Scotland's constitutional future in Europe. His speech is below:

"Ladies and gentlemen, or perhaps mesdammes et messieurs as I should say given our august surroundings, I'm truly delighted to be here today, personally as well as to represent Scotland's national party, and discuss with you how we can shift Scotland up a couple of gears as we update our democracy and rejoin the international community.

"I'm really here to report on an energising discussion, a good news story about faith in democracy and how power should be shared in our interconnected world.

"By way of my own bona fides, I'm a lawyer to trade myself, albeit I toiled in the corporate salt mines of the City of London rather than thought big thoughts in academia. It's nice, especially, to be back in Paris as I studied briefly at Orleans just down the road, and in my Masters at the College of Europe in Warsaw in the mid 90s I focused on the constitutional traditions of Central and Eastern Europe as they regained their independence. I've been an MEP for almost 9 years now, including a stint as a substitute member of the Constitutional Affairs Committee of the Parliament.

"Now, I'll discuss three main things today, and I'm here all day to listen as much as speak - you've seen me taking copious notes already - I'm in pick-up-ideas mode as well as broadcast.

"I'll touch on:

Where Scotland's come in recent years, what drives us and where it might be going;

Our present and future relationships with the EU; and

How we are internally going to reboot Scotland's democracy to make it fit for our times.

Where Scotland's come from

"All Scots, as well as a healthy regard for our own importance, have a better grasp of our history than most, and it is crucial to understand the historical context of what's going on because it explains a lot of what is happening and shoots down a number of misconceptions. Scotland has been independent for longer than we've been part of the UK. Our borders, the land ones at least, haven't changed in hundreds of years, largely because we're a peninsula and a series of islands, but our physical and psychological borders are distinct. Our Parliament, for a variety of reasons, voluntarily wound itself up in 1707 by the Treaty of Union, note, Treaty (given it was an international agreement between two states), never Act, as did the English Parliament, merging the countries along with Wales to form the new state, Great Britain, with a new Parliament, albeit looking and sounding rather like the old English one. This followed the Union of the Crowns a hundred or so years earlier, when James VI of Scotland became also James I of England and decamped to London.

"The Treaty of Union guaranteed a number of things: the independence of Scotland's education and legal systems; the church; and other institutions. Three hundred years later they remain distinct. Nobody in Scotland with any sense of history talks about independence as a new thing, we talk about powers coming back. That, truly, does distinguish us from pretty much every independence movement worldwide, and especially in Europe. The closest parallel, albeit certainly not a direct one, really is central and eastern Europe after the fall of the Berlin Wall. This might seem an abstruse point but it really is fundamental in my experience talking to other Europeans. We think we're really interesting, and indeed we are, but talk about what we're doing to a Slovak, Estonian or Slovene and they can, in their recent lifetimes, talk about doing the same thing but with Soviet tanks on their streets. Our relations with our southern neighbours, by contrast, are cordial and friendly, we'll always be neighbours, family, and friends. By my reckoning, just under half of the European Parliament's MEPs have personal experience of their country becoming independent - often they led the movement.

"Scotland was represented, in various ways, at Westminster, as we still are, but there was always a degree of discontent with that, led largely by my party but also others in civil society. Fast forward to 1999, and our national Parliament was reestablished in Edinburgh. It is a limited Parliament, but responsible for real stuff with legislative capacity - Scotland's legal system was and remains distinct to the English system. Holyrood deals with all aspects of education, health, justice, local government, the environment, agriculture and fisheries.

"It operates to a different democracy to Westminster. I think a better one. At Westminster, each MP is elected by first past the post and is master, occasionally mistress, of all he surveys, with no competition until the next election from any other party. He is THE representative, a democratic model that owes more to the divine right of kings than any concept of popular sovereignty or democratic intellect. By contrast, Holyrood is elected by a variant of PR, with constituency MSPs complemented by, and in daily competition with, list MSPs who also represent the people of the constituency. So we have a chamber more reflective of the national vote, and which guarantees politicians are, day to day, rather more on their toes than would otherwise be the case. Coalition, co-operation, is built into the system, with a coalition, Labour and the Liberal Democrats, governing for the first two terms, then a minority SNP administration from 2007 until 2011 when, by virtue of an electorally perfect storm, we won an absolute majority.

"Now, when I say Holyrood operates a different democracy, I think that reflects a different demos in Scotland, and a different attitude to power, who holds it, and what they do with it.

"I'm an English qualified lawyer, schooled in the Diceyan school of parliamentary sovereignty. The Monarch in Parliament is sovereign, and rules the people, not the other way around. I find the notion as offensive now as I did as a first year undergrad. Our view, and I think the overwhelming view in Scotland, is that the people are sovereign, and they delegate that sovereignty to their elected representatives. This is an important point. Seen from a Westminster perspective, Holyrood is a creature of statute, which owes its legitimacy to the Scotland Act, which can be amended, even repealed, as the majority at Westminster decrees. It would be a cracking constitutional rammy - it would be a brave, foolish government that would even try - but that is the constitutional reality. That's what we're seeking to change, to revert back to our historic status, on a new model fit for our times.

"We're committed to a referendum on independence, and this will happen in the Autumn of next year.

"All Scottish parties have accepted that change is going to happen, and is desirable. We disagree on what degree of change, but all parties accept the people of Scotland have the right to make this choice, and are committed to respect the outcome - again, a crucial difference to pretty much every European independence movement.

"The UK and Scottish governments have signed the Edinburgh Agreement, which, again, and crucially, commits both governments to respect and implement the outcome of the vote, as well as removing such constitutional ambiguity (given the very different constitutional traditions of the two countries) as there was. This was necessary - more necessary than many realise - because where I would indignantly argue that it is entirely for the Scottish Parliament to legislate on our referendum, the UK Supreme Court might well disagree given it views the world through a Westminster prism. The Edinburgh Agreement heads any such confusion off at the pass.

"So there's two scenarios: yes, or no. If no, then much as I'll be heartbroken, we're democrats, we continue as we are, governing what Holyrood governs and promoting the case for more powers.

"If yes, then we start eighteen months of negotiations with the UK, and in parallel to that, the EU and other international organisations, with our new status in international and European law taking effect simultaneously.

"On our domestic constitution, the document "Scotland’s Future: from the Referendum to Independence and a Written Constitution" needs little introduction here, I suspect. Our view is that the process of drafting a written constitution commences after independence, and will be approved by a popular vote. I'll come back to that process later.

Relations with the European Union

"Again, it is worth remembering where we're coming from. The EU is not a necessary inconvenience - a foreign-accented infringement on our sovereignty - it is a framework within which we can shine. We are a left-of-centre party in the European social democratic tradition. We believe that Scotland will be a better nation as an independent nation, setting our own priorities and representing them ourselves. We believe in the European Union and in the pursuit of a peaceful and prosperous Europe. We are internationalist in outlook and intent on Scotland playing a full role in the international arena. Smaller countries "do" multilateralism, and promote and respect the international rule of law - because we lack the delusion of exceptionalism that we can get away without it. It was Jean Monet who said "the world is full of small nations, only some have had the luck to realise it".

"So membership of the EU is, for me and for the SNP, part of our DNA. Independence in Europe has been our aim for decades, and while, of course, we have other options, I've spent a lot of time looking at them - I'm a member of the Delegation for Relations with Switzerland, Iceland and Norway and have been since 2004, and the idea that EFTA or EEA membership is a realistic, desirable or even easily achievable aim just doesn't reflect the facts. The overwhelming balance of convenience, all round, is that we move from being a region of the EU to a member state in our own right.

"So the people of Scotland are sovereign; it's our view that on independence we continue to pool that sovereignty within the framework of the EU. In the same way as EU law only achieves primacy in domestic law by virtue of the continuing effect of the European Communities Act, so we will have a gatekeeper document which continues that relationship, albeit in a new form and with a new status. I don't see that being part of our constitutional document, much as it clearly will have constitutional import.

"But how to get there?

"The one thing that no-one can do is see the future. Our future relations with the EU are currently the subject of intense debate with opponents of Scottish independence demanding that the SNP lays out the entire landscape of the post-independence Scotland. We all know that it’s impossible to know what a country will look like in six months time if nothing changes in the constitutional structures of a nation but we have to foretell the future of a nation that’s in the throes of the greatest debate it has ever had.

"I’ve been amused, at times, by the multifaceted whirling arguments that have risen up as barriers to Scotland’s membership of the European Union after independence, and I’ve been irritated by them as well in equal measure. I began by being amused by the arguments over the legal case for Scotland’s membership or exclusion; it looked at times like a game of table tennis as claim and counterclaim were paddled back and forward across the net without there ever being a resolution but I tired of that and became irritated at the foolishness of looking for an absolute legal case.

"We all know that there is no such case, that the treaties face down such queries with impassive inscrutability. The articles of the treaties have plenty to say on all kinds of different aspects of the EU and of its functions and procedures but they have nothing to say, nothing at all, on Scotland’s position nor on anything similar to Scotland’s position.

"There are no rules for what Scotland is about to do – no rules in terms of continued EU membership. There is no route map; there is no owner’s manual, no handbook to guide a nation through this. There is no precedent: this is all going to be done for the first time when Scotland does it.

"Scotland’s independence, however we see it in Scotland, is likely to be seen from the point of view of our European partners as being secession from the UK and no part of any member state has seceded from that member state and sought full membership of the Union in its own right since the EU was established. There is no rulebook for Scotland to follow and no rulebook for the EU to follow. And that’s a good thing.

"All my experience of the EU suggests to me that it’s at its best when it has to think on its feet. The EU does pragmatism very, very well and it does bureaucracy very, very badly. Where nimble action, quick thinking and collective action are required, the EU acts well and ways are found.

"Whatever way it happens, we know that we will be breaking new ground, that we will be establishing precedents one way or another, and that Scotland’s case will be closely scrutinised. We know that there will be horse-trading and that there will be some serious negotiation before Scotland’s independence day in the Spring of 2016.

"The treaties are silent but Europe will speak, and Europe will act in the classic fashion that has become the hallmark of European politics and diplomacy over the last thirty years. Just as a solution was found for Germany on unification and a solution found for Greenland on moving to OCT status, a solution will be found for Scotland.

"My nation will, I am absolutely certain, be welcomed into the family of EU nations; and it will be welcomed in quickly so that Scotland will become the newest EU member state on the day that Scotland becomes an independent state. My party has always said that there will be negotiations on Scotland’s membership, but they're points of detail, not principle. I am equally certain that they will be overcome and that Scotland will be welcomed as a new member of the European Union.

"Scotland, with 80% of EU oil and gas reserves; with vast wind and wave resources; with the excellence of our universities and our research into many areas of modern life, including food production; with the enterprise and imagination of Scots; with our European outlook; with our imagination; with our willingness to be good neighbours, Scotland will be welcome.

"The EU is looking to complete the unification of Europe, looking to bring in the remaining European states still outwith the union, why would it want to lose Scotland? As Albania, Montenegro and Serbia are lining up to be welcomed aboard, why would Scotland be thrown overboard? Scotland will be an EU member state on day one of Scottish independence but there’s no rule to say so, no law stamped down in black and white delineating the right. There is no right to be enforced, there just is the realpolitik and the knowledge that the EU has faced issues of this magnitude before and dealt with them because that’s what Europe does – it deals with problems and finds solutions.

"All the logic, all the weight of convenience, on all sides, points to continued EU status for Scotland. The alternatives are even more bothersome from a Brussels perspective than from ours! A new EEA member? Saints preserve us!

"I’ve heard a case made by a very eminent QC who is an expert on European law. His name is Aiden O’Neill and his point is that the Court of Justice would strike down any moves to deprive Scots of their European citizenship because the Court has held, time and again, that citizenship trumps all other considerations. He extrapolated from that that it is more than just sensible that the EU would not accept five million of its citizens being left outside its borders and the Court would, therefore, hold that Scotland would have to be a member of the European Union.

"I think that's an interesting argument, and it would certainly be a cracking court case, but I think it is persuasive rather than a clincher, not least when I don't see things will ever get to that point given common sense on all sides.

"Granted, a citizen of the EU could take a case to the Court and claim that their citizenship rights are under threat but that is a shaky case to carry – to ask the court to rule that a future decision might be in contravention of the Treaty obligations. Waiting until after independence, of course, would run into the negotiations that Scotland will be having with the EU, with the member states, about the terms of our membership and that would be an added distraction that would be, in my opinion, unwelcome as we try to make progress.

"In all truth, it’s the politics and the reality that counts in Europe; what needs to be done and how do we go about it are the questions that are asked and answers sought.

"Scotland is currently part of the EU – not yet a member state in its own right, but part of the EU nonetheless – and our laws are already in alignment with the acquis communautaire, more so than the rest of the UK thanks to the Scotland Act which forces Scottish legislation into the gold-plating of European legislation which other nations so often and so adroitly avoid. The biggest part of any nation’s bid for EU membership is getting itself into alignment with the acquis so Scotland is already well ahead of the game. The negotiations over Scottish membership will be fast, they will be straightforward, if not simple, and they will be done from within the EU. I appreciate that is an assertion but it is simply the overwhelmingly most likely scenario, because it suits the interests of all parties.

"And in exactly the same way as the Edinburgh Agreement ironed out differences of perception, the European Commission has already said that it will not comment, given there is no treaty law to comment upon, on hypothetical scenarios, but it will rule on a detailed scenario if asked to by a member state government.

"We have called, some weeks ago, for the Scottish and UK governments to agree just such a scenario and put it to the Commission for a view. That would end the assertion trading, it would give us a proper basis for discussion and would let us all get on with the real debate. I hope to see movement on that in the coming months.

How we are going to reboot democracy

"We are rebuilding a nation - an ancient nation with a modern democracy - and we’re determined to make it a forward-thinking nation that embraces the future and locks decency and fairness into the very fabric of the nation.

"We don't view independence as a thing in itself: it's a means to an end to bring the powers home to do what we need to do to achieve the society we want to be. What is more integral to that than a discussion about our internal constitutional law?

"And the first thing to say is that it is our view there should be a written constitution. This might seem obvious and today's proceedings are certainly proceeding on that assumption, but I'm not convinced that some in the other parties actually accept that point! We've put out some points for discussion of course - I mentioned Scotland’s Future: from the Referendum to Independence and a Written Constitution earlier on. We take the view that the time for detailed discussion of process and content of the constitution will be after we vote yes - there's a risk that we could otherwise spend too much time discussing constitutions when we would be better spending time to ensure we get a yes vote at all!

"But, obviously, it behoves us to give some pointers, and enter into that, this, discussion. We're not without resources and allies: the Venice Commission, international experts and, of course, our own domestic intellectual resources and the enthusiasm of our people and civic organisations.

"So while the detail of the process will be set out in due course, I can tell you that there are some issues which my party will be proposing as principles to be embedded in that constitution – in addition to those you would expect as normal, of course.

"Firstly, a principle that runs through Scottish civic discourse like the veins that run through the rocks that make up the landmass of our nation - Scotland should be free of nuclear weapons. For me this is an irreducible principle; for the SNP this is an absolute necessity; for a great chunk of the Scottish people it is a logical response to the horror and inhumanity represented by those weapons of mass destruction which currently lurk in Scottish waters. I am sure that this principle will be part of the new constitution. Scotland independent will adhere to and cleave to the principles, the letter and the spirit of non-proliferation.

"We are also proposing that a right to education should be enshrined in our constitution – a right to education without fees. We have a belief that education is a benefit to all of society as well as to the individual; that we all need engineers and doctors and teachers and architects and lawyers. We benefit from a well-educated populace that can enhance our society and drive it forward.

"That education should be free at the point of delivery. It clearly costs money to deliver - we don’t believe in magic - but that cost should be borne by the state as an investment in society, as an investment in ambition, as an investment in our common development and improvement.

"There is also the intention to write into our constitution the abolition of poverty – child poverty in particular. Obviously poverty cannot be ended by diktat and the provisions in the constitution can only be provisions which compel governments to seek and implement solutions to poverty and, especially, to child poverty.

"As well as these, our party leader, Alex Salmond, the First Minister of Scotland, has proposed that we include in our constitution the right to housing, somewhere to live.

"There have been voices in Scotland saying that these are not the kind of things that can go in a constitution; that these are government aspirations rather than constitutional rights. I ask why we can’t embed decency in the fabric of our nation, why it is that some people think that equality can be achieved when equality of opportunity is denied. I ask why our common humanity isn’t driving all of us to demand that our neighbours are properly housed and can feed and clothe themselves and can be educated and have the same chances in life as anyone else in the country.

"But there’s more to Scotland’s new constitution than what my party puts forward and I’ll be interested to see what other proposals come from other sections of Scottish society because the future does not belong to me or to my party, not to any one section of Scottish society. Scotland’s future belongs to Scotland as a whole and everyone should be able to contribute towards the development of our constitution in the delegate assembly which will be set up for the purpose.

"That writing will begin after we vote for independence in Autumn 2014. I’m rather looking forward to it. The thinking is ongoing now, and is engaging and enthusing the people, some at least, if not all, in a discussion about what sort of state we want to build. How we relate to power, how we use it and how we make those who wield it accountable. What our values actually are, not what I or any one person thinks they are.

"There will be, of course, the respect for rights which we can see in so many other constitutional documents – the rights enshrined in the human rights conventions and charters of the European Union and the United Nations. How we interlock those multilateral provisions into our domestic basic law is a matter of mechanics, not principle.

"And, at that, I can't avoid highlighting the differences in attitude here between the Scottish mainstream and our UK government. I simply cannot conceive that any Scottish politician of any party would countenance the idea of removing our nation from the purview of the European Court of Human Rights as UK Prime Minister David Cameron has done. Nor can I think of a single serious Scottish politician who would want to repeal the Human Rights Act as the current UK Justice Secretary has pledged. If, and we're in hypothetical land of course, this is all still relevant to us post 2014 then I'm gravely concerned about the direction of travel of my state, the UK.

"The rationale they are using to oppose human rights is that judges in Strasbourg have been making judgements that the right-wing press in the UK doesn’t like and the domestic judges have been letting them! Not the reality - that this is a body of law we agreed to sign up to and abide by - and in earlier, more honourable times, the UK did a sterling job of forming and promoting.

"So it's my view that we have a distinct demos in Scotland, and a distinct set of values which owes more to the Nordic, social democratic mainstream than elsewhere. Codifying these values will be an energising, aspirational debate.

"But, as I say, Scotland’s political viewpoint is, generally, geared towards working productively with a larger number of other nations for the greater good than ruling the roost, taking our turn at doing the work in the Security Council – cooperation in world affairs rather than the desire to rule them. We seem to agree with Dean Acheson that “Great Britain has lost an Empire and has not yet found a role” – which he said back in 1963. It could be said that Scotland prefers internationalism to imperialism.

"As our Deputy First Minister, Nicola Sturgeon, said in one of her rallying speeches for the independence campaign:

“Our referendum may be asking only one question, but in truth Scotland faces two choices – the first is whether to bring the powers home to govern ourselves, rather than stick with UK governance.

And the second is – what kind of society do we want to be.

But we don't get to make the second choice without being prepared to make the first.”

"We've a lot of things to decide in the coming months and years. The future is, as yet, unwritten - that's the point, that's what's exciting. I look forward to today's continuing discussion and working with you in that common aim.